Intermediary Liability for Harmful Speech: Lessons from Abroad

TABLE OF CONTENTS I. INTRODUCTION II. RELEVANT CYBER-TRENDS A. Dominance of Online Intermediaries B. Explosion of User-Generated Content C. Concurrent Assertion of Personal Jurisdiction over Online Actors III. APPROACHES TO INTERMEDIARY LIABILITY A. United States B. Canada C. United Kingdom D. European Union IV. RETHINKING THE U.S. APPROACH TO INTERMEDIARY LIABILITY A. Content Declared To Be Illegal B. Unadjudicated Content: Poster Known C. Unadjudicated Content: Poster Unknown V. CONCLUSION I. INTRODUCTION Nearly twenty-three years ago, the question of intermediary liability for defamatory content posted online by a third party arose in Cubby, Inc. v. CompuServe Inc., (1) the first documented U.S. cybertort case. (2) The case was brought before the courts when the World Wide Web was still in its infancy. (3) Over the intervening years, much has changed with respect to both Internet technology and law, but the debate regarding the proper contours of intermediary liability for user-generated content has persisted relatively unabated. (4) This debate continues to vex courts, legislators, academics, Internet intermediaries, and Internet users. Adopting a comparative methodology, this Note proposes that the United States rethink aspects of its approach to intermediary liability for user-generated content by learning from the experiences of and challenges faced by other Western legal jurisdictions with which it regularly interacts. While accounting for the unique policy goals and obstacles faced by the United States, the proposed approach would bring the American legal regime closer in line with those of Canada, the European Union, and the United Kingdom. The scheme proffered is directed at online service providers that host socially unacceptable or harmful user-generated content. The scheme would not require intermediaries to assess the legality of content themselves--intermediary judgment--but rather, would hinge intermediary liability on failure to act on knowledge of content judged illegal or defamatory by an external authority. Ultimately, the proposal strives to grant victims of defamatory speech greater ability to have illegal or defamatory content removed. Given the breadth of this area of law and the myriad issues it encompasses, the in-depth treatment of one legal question by this Note precludes exploration of others. This Note deals with intermediaries that host user-generated content online. It does not deal with intermediaries that provide only technical and physical infrastructure for the transmission of information, e.g., data processing, content delivery, payment processing, and Internet access services to users (ISPs). (5) Search engines also raise unique challenges not expressly addressed herein. (6) The scope of this Note is limited to user-generated content considered to be harmful speech. The Note focuses on defamatory and libelous speech, but also touches upon criminal speech, such as child pornography and hate speech. Infringements of intellectual property rights such as copyright and trademark raise fascinating legal questions and cross-border challenges, but are not covered by this Note. (7) Nor does this Note address cyber-bullying and its equally distasteful variant slut-shaming. While repugnant, the speech involved in such conduct may constitute constitutionally protected opinion. (8) Many proposals have been put forward on how to best address cyberbullying, (9) but to the extent that such speech does not constitute defamation, it falls beyond the scope of the proposal advanced herein. This Note is divided into three further parts. Part II discusses the relevance of three cyber-trends: (1) the ever-growing role of online intermediaries, (2) the unprecedented rate at which user-generated content is produced and distributed, and (3) the concurrent assertion of personal jurisdiction over online actors by courts in multiple jurisdictions. …